Ohio's First Execution in Three Years Set for Wednesday; Last-Minute Legal Actions Under Way for Ronald Phillips

Barring an intervention from U.S. Supreme Court, Ronald Phillips will be executed tomorrow. His will be the first lethal injection by the state of Ohio since 2014.

That execution, in which the state killed Dennis McGuire, did not go smoothly. McGuire gasped and snorted audibly and took more than 15 minutes to die once the drugs were injected. One of those drugs was midazolam, a sedative that Ohio had not previously used. The drug's efficacy is questionable in lethal injection scenarios, and its uncertain effects have botched executions in other states as well, including Arizona, Oklahoma and Alabama.

Since then, the state has been fighting for its right to use midazolam. A recent trend has seen pharmaceutical companies become very reluctant to allow their sedative drugs to be used in state executions; midazolam remains a simple solution for states that still pursue the death penalty. On the other side, a federal judge in the southern district of Ohio ruled earlier this year that the drug produces an unconstitutional level of cruel punishment and pain (citing the Eighth Amendment).

In June, a federal appeals court reversed the decision and granted Ohio its right to use midazolam as part of a three-drug protocol to execute prisoners. "The Constitution does not guarantee ‘a pain-free execution,'" Judge Raymond Kethledge wrote.

The state of Ohio also spent the early part of 2017 busying itself in an attempt to obtain a drug that would reverse the effects of a lethal injection — in the event that the process goes wrong.

Against that backdrop, Phillips' execution date has come and gone before. He is now set to die on July 26. Death penalty observers will be watching closely. (Gov. John Kasich will be present for the execution too.) Phillips was convicted in 1993 of raping and killing his girlfriend's 3-year-old daughter.

With all signs point to the execution taking place, a series of legal filings is dropping into the U.S. Supreme Court. Attorneys have again filed for an application for a stay and a petition for a writ of certiorari. (See below.)

And 15 prominent professors of pharmacology filed an amicus curiae brief at the U.S. Supreme Court this week, delving deep into the troubling properties of midazolam.

"Midazolam is incapable of rendering an inmate unconscious prior to the injection of the second and third drugs in the State of Ohio’s lethal injection protocol," the professors insist. "Therefore, midazolam is not appropriate for its intended purpose as the first drug in the State of Ohio’s three-drug lethal injection protocol."
(Update, Tuesday night: The U.S. Supreme Court denied Phillips' application for a stay and his petition for writ of certiorari.)